San Benito County Municipal Code Ch. 19.41 Indemnification

The purpose of this chapter is to provide greater certainty to the county and to applicants for land use or development permits, licenses, authorizations, entitlements or other approvals concerning how legal challenges shall be addressed. As applicants are the parties primarily interested in and benefitting from approvals sought from the county, and recognizing that legal challenges may result in significant expenses even in the event of meritless actions, this chapter is intended to require applicants to assume responsibility for any such challenges.

(Ord. 876, § 1 (part), 2011)

The following words, phrases and terms as used in this chapter shall have the following meanings:

APPLICANT. Any person, firm, corporation, company, partnership, association, society, trust, joint venture, any other type of business entity, any other type of organization, or any governmental entity that files an application with the county for a ministerial approval, discretionary approval, or for a tentative map, vesting tentative map, parcel map, final map, or any modification thereto.

APPROVAL(S). Shall be defined to include both DISCRETIONARY APPROVALS and MINISTERIAL APPROVALS.

COUNTY. The County of San Benito, the San Benito County Board of Supervisors, the Planning Commission for the County of San Benito, the Planning Department, the Public Works Department, and all advisory agencies, appeals boards, officers, agents and employees of San Benito County.

DISCRETIONARY APPROVALS. Any discretionary land use or development permit, license, authorization, entitlement or other approval from the county, and shall include, but not be limited to, the following: zone change, lot line adjustment, certificate of compliance, conditional use permit, conditional use permit modification, conditional use permit extension, C-district review, M-district review, administrative C-district review, administrative M-district review, variance, variance modification, reclamation plan, scenic corridor review, non-conforming building site review, special plan review, minor use permits, temporary mobile home renewal and temporary use permits, certain grading permits, or any other land use entitlement(s) requiring the county's exercise of judgment in the decision of whether or not to grant the approval requested and/or whether or not to impose conditions of approval. DISCRETIONARY APPROVALS shall also include any action or decision on any accompanying California Environmental Quality Act (CEQA) document or determination pertaining to any such approval. DISCRETIONARY APPROVALS shall not be defined to include tentative maps, vesting tentative maps, parcel maps, final maps, or the modification to such maps.

MINISTERIAL APPROVALS. Any approval in which the approval is based on carrying out the mandates of statutes, code, and other legal authority without exercise of individual discretion. This chapter shall only apply to ministerial approvals by the staff in the departments of Public Works, Planning, and Environmental Health. MINISTERIAL APPROVALS may include, depending on the circumstances, but are not limited to: building permits, transportation permits, right-of-way encroachment permits, well permits, grading permits, septic system permits, water system permits, pool permits, permits for restaurants and other food establishments, and permits for hazardous substances.

(Ord. 876, § 1 (part), 2011)

(A) Except where otherwise expressly prohibited by state or federal law, the county shall require, as a prerequisite for approval or as part of the application process, an applicant for any approval(s) to agree in writing to defend, indemnify, and hold harmless the county and its officers, agents, employees, boards and commissions from any claim, action, litigation, or proceeding brought by any person or entity other than the applicant ("third party") against the county or its officers, agents, employees, boards or commissions that arises from or is in any way related to an approval(s), including, but not limited to claims, actions, litigation, or proceedings to attack, set aside, void, or annul an approval(s).

(B) Additionally, a condition of approval shall be imposed upon all approval(s) requiring the applicant to defend, indemnify, and hold harmless the county and its officers, agents, employees, boards and commissions from any claim, action, litigation, or proceeding brought by any person or entity other than the applicant ("third party") against the county or its officers, agents, employees, boards or commissions that arises from or is in any way related to an approval(s), including, but not limited to claims, actions, litigation, or proceedings to attack, set aside, void, or annul an approval(s).

(C) If any third party claim, action, or proceeding is filed, the county will promptly notify the applicant of the claim, action, or proceeding and will cooperate fully in the defense. If determined appropriate by the County Board of Supervisors, the county may also participate in the defense of any claim, action, or proceeding, with the applicant paying the reasonable cost of the county's defense. Such costs shall include the county's reasonable attorney's fees and other reasonably related defense expenses including county staff time. The indemnification required by divisions (A) and (B) of this section shall include damages awarded against the county, costs of suit, attorneys' fees, and other costs and expenses incurred in connection with any such claim, action, litigation, or proceeding.

(D) Any indemnification agreement entered into pursuant to division (A) of this section, above, may be in a standard format approved by county counsel and executed by a department head or the County Administrative Officer, or their authorized designees, on behalf of the county. In the alternative, an indemnification agreement may be negotiated on a case-by-case basis and approved by the Board of Supervisors.

(E) Applicants for general plan and specific plans amendment applications shall also be subject to § 19.29.006(B).

(F) All tentative maps, vesting tentative maps, parcel maps, final maps, and final or parcel map modification amendments are subject to Cal. Gov't Code § 66474.9 and therefore, the county may require as a condition for an application or approval, that the applicant defend, indemnify, and hold harmless the county from any claim, action, or proceeding against the county to attack, set aside, void, or annul, an approval of the county, the Planning Commission, or the Board of Supervisors concerning a subdivision, which action is brought within the time period provided for in Cal. Gov't Code § 66499.37. Any condition imposed shall require the county to promptly notify the applicant of any claim, action, or proceeding and that the county cooperate fully in the defense. The county may participate in the defense of any claim, action, or proceeding, if the county elects to bear its own attorney's fees and costs and defends the action in good faith. The applicant will not be required to pay or perform any settlement unless the applicant agrees to the settlement.

(G) The obligations specified in this chapter shall be binding upon on the successors in interest of the applicant.

(H) The Board of Supervisors may waive, on a case-by-case basis, any indemnification requirement of this chapter upon a request of the applicant.

(Ord. 876, § 1 (part), 2011)